Mintex, Inc. v. Prof'l Account Mgmt., LLC
Mintex, Inc. v. Prof'l Account Mgmt., LLC
2024 WL 1481057 (N.D. Tex. 2024)
February 26, 2024
Toliver, Renee H., United States Magistrate Judge
Summary
The court denied the defendants' motion to compel the plaintiff to produce additional financial documents, finding that the request was overly broad and unduly burdensome. The court also granted the plaintiff's motion to compel certain documents and denied the defendants' objections to certain requests for production. The court also ordered the defendants to produce a privilege log for any withheld documents and limited the relevant time frame for internal communications. The court also granted the plaintiff's motion to compel responses to their request for production and denied their motion to compel a deposition.
MINTEX, INC., PLAINTIFF,
v.
PROFESSIONAL ACCOUNT MANAGEMENT, LLC, ET AL., DEFENDANTS
v.
PROFESSIONAL ACCOUNT MANAGEMENT, LLC, ET AL., DEFENDANTS
CIVIL CASE NO. 3:23-CV-301-B-BK
United States District Court, N.D. Texas, Dallas Division
Filed February 26, 2024
Counsel
Gregory Bryan Godkin, Roberts Markel Weinberg Butler Hailey PC, Austin, TX, Cyra A. Dumitru, Pro Hac Vice, Roberts Markel Weinberg Butler Hailey, Houston, TX, Laura Mondello Cabutto, Roberts Markel Weinberg Butler Hailey PC, Dallas, TX, for Plaintiff.Tricia Robinson DeLeon, Wynter Scott, Holland & Knight LLP, Dallas, TX, for Defendants.
Toliver, Renee H., United States Magistrate Judge
ORDER
*1 Pursuant to 28 U.S.C. § 636(b) and the district judge's orders of reference,[1] before the Court for determination are Defendants' Motion to Compel Plaintiff's Responses to Outstanding Discovery upon Alleged Lost Profits (“Defendants' Motion to Compel”), Doc. 38; Plaintiff Mintex's First Motion to Compel Discovery and to Compel the Deposition of the Person Most Knowledgeable About Defendants' Discovery Process (“Plaintiff's Motion to Compel Discovery and to Compel Deposition”), Doc. 40; Defendants' Motion for Protections and Motion to Quash Subpoenas to Brian Dunn and Eric Hunn, (“Defendants' Motion for Protections and to Quash”), Doc. 46; and Defendants' Motion to Exclude Plaintiff's Corporate Representative Deposition Errata Sheet (“Defendants' Motion to Exclude”), Doc. 58. Upon consideration, Defendants' Motion to Compel, Doc. 38, is DENIED; Plaintiff's Motion to Compel Discovery, Doc. 40, is GRANTED and its Motion to Compel Deposition, Doc. 40, is DENIED AS MOOT; Defendants' Motion for Protections, Doc. 46, is DENIED and their Motion to Quash, Doc. 46, is DENIED AS MOOT; and Defendants' Motion to Exclude, Doc. 58, is DENIED AS MOOT.
I. BACKGROUND
Plaintiff Mintex, Inc. (“Mintex” or “Plaintiff”) is a collections agency registered as a minority/disadvantaged business enterprise (“MBE” or “DBE”) with the Texas Department of Transportation (“TxDOT”). First Am. Compl., Doc. 11 at 3. Mintex alleges that beginning in 2014 it worked as one of Defendants' subcontractors and designated MBE on various projects, including a toll collection project for the North Texas Tollway Authority (“NTTA”). Doc. 11 at 3-4. In 2018, Defendants asked Mintex to serve as the subcontractor and designated MBE for another NTTA toll collection project (“Project No. 3”). Doc. 11 at 4-5. Mintex asserts that Defendants “represented, at all times, that Mintex was the DBE for Project No. 3,” and the parties entered into NTTA's form agreement, known as “the 4906,” recognizing Mintex as the participating MBE on Project No. 3. Doc. 11 at 5. In addition, Mintex alleges that “NTTA's website itself also indicates that Mintex is entitled to payment for Project No. 3 and NTTA recognizes Mintex as a party to Contract No. 3.” Doc. 11 at 8.
Mintex contends that notwithstanding these representations and the 4906 agreement, “[it] has never received any payments whatsoever for Project No. 3 or a notice that it is not in fact the participating MBE[,]” and “NTTA has paid out millions of dollars for Project No. 3 [to Defendants], a percentage of [which] was supposed to be remitted at regular intervals to Mintex as the participating MBE.” Doc. 11 at 7. Mintex brings claims for breach of contract, fraudulent inducement, fraudulent misrepresentation, quantum meruit, and unjust enrichment. Doc. 11 at 8-14.
Pursuant to the Amended Scheduling Order, see Doc. 29, the deadline for completion of discovery was February 20, 2024, and the matter is set for trial June 3, 2024. The parties have filed several discovery-related motions that are ripe for disposition.
II. LEGAL STANDARD
*2 Unless otherwise limited by the Court,
[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
FED. R. CIV. P. 26(b)(1). More simply, under Rule 26(b)(1), discoverable matter must be both relevant and proportional to the needs of the case. Samsung Elecs. Am., Inc. v. Yang Kun Chung, 321 F.R.D. 250, 279 (N.D. Tex. 2017). “To be relevant under Rule 26(b)(1), a document or information need not, by itself, prove or disprove a claim or defense or have strong probative force or value.” Id. at 280. Relevance is interpreted broadly to include “any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc., v. Sanders, 437 U.S. 340, 352 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)). The party opposing discovery bears the burden of showing why the discovery sought is not relevant or is otherwise objectionable. Mir v. L-3 Commc'ns Integrated Sys., L.P., 319 F.R.D. 220, 224 (N.D. Tex. 2016).
When analyzing the proportionality of a party's discovery requests, courts consider: (1) the importance of the issues at stake in the action; (2) the amount in controversy; (3) the parties' relative access to the information; (4) the parties' resources; (5) the importance of the discovery in resolving the issues; and (6) whether the burden or expense of the proposed discovery outweighs its likely benefit. FED. R. CIV. P. 26(b)(1). A court “must limit the frequency or extent of discovery otherwise allowed” if “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” FED. R. CIV. P. 26(b)(2)(C).
As to requests for production or inspection, a party may serve on any other party a request within the scope of Rule 26(b): “(1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control: (A) any designated documents or electronically stored information ... or (B) any designated tangible things.” FED. R. CIV. P. 34(a). In response to a Rule 34(a) request, “[f]or each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.” FED. R. CIV. P. 34(b)(2)(B).
*3 The party resisting discovery must show specifically why each disputed request for production is not relevant or is otherwise objectionable as overly broad or burdensome. See McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990). “General or boilerplate objections are invalid, and objections to discovery must be made with specificity, and the responding party has the obligation to explain and support its objections.” Lopez v. Don Herring Ltd., 327 F.R.D. 567, 578 (N.D. Tex. 2018) (Horan, J.) (cleaned up). A party asserting “unsupported or boilerplate objections does not preserve or accomplish anything other than waiver and subjecting the responding party to sanctions.” Id. at 581. And any grounds not stated in a timely objection are waived. Id. at 582.
If a party fails to respond to a proper request for discovery, or if an evasive or incomplete response is made, the party requesting the discovery is entitled to file a motion to compel production of documents after having made a good-faith effort to resolve the dispute by conferring first with the other party. FED. R. CIV. P. 37(a). But a court may decline to compel, and, at its option or on motion, “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden ..., including ... forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters.” FED. R. CIV. P. 26(c)(1)(D). “[T]he burden is upon [the party seeking the protective order] to show the necessity of its issuance, which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.” In re Terra Int'l, 134 F.3d 302, 306 (5th Cir.1998) (citation omitted). In deciding whether to grant a motion for a protective order, the court has significant discretion. Harris v. Amoco Prod. Co., 768 F.2d 669, 684 (5th Cir. 1985).
For purposes of Rule 37(a), “an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” FED. R. CIV. P. 37(a)(4).
III. ANALYSIS
A. Defendants' Motion to Compel, Doc. 38
Defendants seek an order compelling Mintex to (1) answer Request for Production No. 12; and (2) present its expert for deposition before the discovery deadline. Doc. 38 at 8. “A proper Rule 37(a) motion to compel ... must attach a copy of the discovery requests at issue such as Rule 34 requests for production ... and of the resisting party's responses and objections to those requests[.]” Lopez, 327 F.R.D. at 585 (cleaned up). Defendants fail to comply with this threshold requirement. Nevertheless, because Mintex includes the discovery request at issue (as well as its Second Supplemental Objections and Responses thereto) as part of its appendix to its response brief, see Doc. 45-9, the Court will consider the motion, rather than denying it on this basis alone. See, e.g., Seastrunk v. Entegris, Inc., No. 3:16-CV-2795-L, 2017 WL 6406627, at *10 (N.D. Tex. Dec. 15, 2017) (denying motion to compel for failure to attach copies of discovery requests at issue and any responses and objections).
RFP No. 12: Any and all documents that you contend support any of your damages alleged in the Petition.
Response: Plaintiff objects to this Request to the extent it is overly broad and unduly burdensome as it seeks to compel “all documents” which exceeds the scope permissible discovery. Subject to and without waiving the foregoing, please see Plaintiff's documents Bates-labeled MINTEX 000001-001024.
Pl.'s Second Supp. Obj. & Resp. to Defs.' RFP, Doc. 45-9 at 6.
*4 Defendants seek an order compelling Mintex to produce additional documents in response to RFP No. 12, arguing that Mintex has limited its production of documents responsive to RFP No. 12 to “generic, summary financial information” which does not contain “any of the key Financial Data” requested by Defendants. Doc. 38 at 6. Specifically, Defendants seek to compel “historical financial statements, balance sheets, detailed profit and loss statements, revenue reports, general ledgers, tax returns, gross profit margins, variable and fixed costs, and cost projections (collectively, the ‘Financial Data’).” Doc. 38 at 2-3. They contend that Mintex “refuse[s] to produce the Financial Data and instead want[s] to engage in a game of hide and seek.” Doc. 38 at 3.
In response, Mintex argues that “Defendants' Motion is nothing more than an argument about what can and cannot be used to measure damages (here, lost profits)—this is not a proper discovery dispute.” Doc. 45 at 1. Mintex also contends, inter alia, that the financial documents Defendants seek to compel “have never actually been requested in discovery” and that RFP No. 12 fails to describe with reasonable particularity the documents Defendants now seek to compel. Doc. 45 at 2, 7.
Upon review, the Court concludes that RFP No. 12 fails to describe the information Defendants seek, i.e., the “Financial Data,” with reasonable particularity as required by Rule 34(b)(1)(A). “The test for reasonable particularity is whether the request places the party upon reasonable notice of what is called for and what is not.” Baker v. Walters, 652 F. Supp. 3d 768, 778 (N.D. Tex. 2023). RFP No. 12 cannot be read to place Mintex on notice that it calls for the “historical financial statements, balance sheets, detailed profit and loss statements, revenue reports, general ledgers, tax returns, gross profit margins, variable and fixed costs, and cost projections” that Defendants seek in their motion to compel.
Regarding Defendants only specific request, seeking “any and all documents that you contend support any of your damages alleged in the Petition,” Doc. 45-9 at 6, Mintex asserts that it “has complied with Request for Production No. 12 as drafted and has produced the documents upon which its damage model is based.” Doc. 45 at 9. The record reflects that Mintex designated Shawn Pickens as its expert on damages, and in October 2023, Mintex produced Mr. Pickens's 554-page report and subsequently produced his work file which contained an additional 3039 pages. See Doc. 27 at 1-2; Doc. 30-2 at 1-544; Doc. 45-3 at 1.[2] In their reply brief, Defendants do not challenge that they received these documents in response to RFP No. 12. See Doc. 49, passim.
Finally, in their reply brief, Defendants contend that Mintex's argument—that Defendants never requested the “Financial Data”—“is now moot,” as Defendants, just before filing their reply brief, served their Second Request for Production upon Mintex specifically asking for the “Financial Data.” Doc. 49 at 2-3.
As with their initial motion, Defendants fail to attach copies of their Second Request for Production or any responses and objections that may have been filed. As such, the Court cannot properly assess and determine the scope of any Second Request for Production or whether such request would render moot any of Mintex's arguments or objections.
For these reasons, Defendants' motion to compel “historical financial statements, balance sheets, detailed profit and loss statements, revenue reports, general ledgers, tax returns, gross profit margins, variable and fixed costs, and cost projections” in response to RFP No. 12 is DENIED.
*5 Defendants state in their reply brief that the parties have scheduled Mr. Pickens's deposition in February 2024. See Doc. 40 at 7. Therefore, Defendants' request that the Court compel Mintex to produce its expert for deposition is DENIED AS MOOT.
B. Plaintiff's Motion to Compel Discovery and to Compel Deposition, Doc. 40
In October 2023, Mintex served its First Set of Requests for Production to Defendants (“Requests for Production”). See Doc. 40-15 at 1-7. Defendants responded to the request in November 2023, objecting to all but one request. See Doc. 40-15 at 1-7. Thereafter, Mintex's counsel sent two deficiency letters, and the parties exchanged numerous emails but were unable to resolve their conflicts. See Doc. 40-4 through Doc. 40-8; Doc. 40-11.
Mintex now moves to compel production of documents from Defendants, asking the Court to overrule Defendants' “boilerplate objections” to nineteen of its Requests for Production and order full production of responsive documents. See Doc. 40 at 10-11. In addition, Mintex states that while some responsive materials have been produced, it is not clear if materials are being withheld because “no bates labels are referenced in the Responses.” Doc. 40 at 11. Mintex seeks an order requiring Defendants to affirm that they have produced all documents responsive to requests and to insert relevant bates labels on the responsive documents. Doc. 40 at 11.
In their response brief, Defendants argue that Mintex's motion should be denied as moot because their final production in January 2024 (“Final Production”) “cured almost all of Plaintiff's alleged complaints.” Doc. 48 at 2-3. Defendants further aver that “[t]he only Requests for which Defendants have withheld documents are Nos. 6, 8, 9, 10, 12, 14, 16, and 20.” Doc. 48 at 4. According to Defendants, “[a]s to Plaintiff's other Requests, Defendants invited it to identify any responsive documents or category of documents it still believes to be missing. Plaintiff has not identified any because there are none – with the exception to the documents contained in Defendants' Final Production.” Doc. 48 at 4. With respect to RFP Nos. 6, 8, 9, 10, 12, 14, 16, and 20, Defendants contend the Court should sustain their objection based on relevance and deny Mintex's Motion to Compel. Doc. 48 at 5.
In reply, Mintex complains that many of the emails produced in the Final Production are “screen shots of e-mails, not the original e-mails, and are missing attachments, responses, and replies.” Doc. 54 at 2 (original emphasis). Mintex provides the Court with numerous examples of these purported deficiencies. See Doc. 54 at 3-4; Doc. 54-1; Doc. 54-2. Mintex also contends that RFP Nos. 6, 8, 9, 10, 12, 14, 16, and 20 seek relevant information and asks the Court to overrule Defendants' relevance objections. Doc. 54 at 5-7. In addition, Mintex argues that Defendants have waived any objections not initially raised, including a confidentiality objection and an objection that Mintex's discovery “constitutes a fishing expedition.” Doc. 54 at 6. Finally, Mintex states that “Defendants are still refusing to include bates labels in their discovery responses which makes document management/organization in this case almost impossible.” Doc. 54 at 7.
*6 As a threshold matter, the Court notes that the Defendants mistakenly cite to state procedural law in their response brief. See Doc. 48 at 5. Defendants removed this matter to federal court based on diversity of citizenship and because the amount in controversy exceeded $75,000, exclusive of interest and costs. See Notice of Removal, Doc. 1. “The Federal Rules of Civil Procedure and Evidence—not the Texas Rules—govern in federal diversity jurisdiction cases.” Fuller v. Werner Enterprises, Inc., No. 3:16-CV-2958-BK, 2018 WL 10380370, at *2 (N.D. Tex. Nov. 29, 2018) (citing Grenada Steel Indus., Inc. v. Ala. Oxygen Co., Inc., 695 F.2d 883, 885 (5th Cir. 1983)).
Moreover, Defendants rely on an outdated standard for relevancy in their response brief and in their objections, i.e., whether the information sought is “reasonably calculated to lead to the discovery of admissible evidence.” See Doc. 48 at 5. The 2015 amendments to Rule 26 deleted the phrase “reasonably calculated to lead to the discovery of admissible evidence” because the phrase has been used to incorrectly define the scope of discovery. See Lopez, 327 F.R.D. at 573; see also FED. R. CIV. P. 26, 2015 comm. note.
Although Defendants contend that their Final Production rendered moot many of Mintex's complaints in its Motion to Compel, upon review of the documents attached to Mintex's reply brief, see Doc. 54-1 and Doc. 54-2, it appears to the Court that, in certain instances, Defendants have produced “screen shots of emails, not the original emails, and are missing attachments, responses, and replies.” See Doc. 54 at 2. This is not sufficient. Defendants must produce not just the screen shots, but available original copies of the responsive emails, as well as any missing attachments, responses, and replies associated with such emails.
Defendants assert that “[t]he only Requests for which Defendants have withheld documents are Nos. 6, 8, 9, 10, 12, 14, 16, and 20.” Doc. 48 at 4. With respect to these Requests for Production, Defendants contend that they seek irrelevant information because the documents they seek “cannot be considered to be reasonably calculated to lead to the discovery of admissible evidence.” Doc. 48 at 5. Defendants argue that, based on their corporate representative's testimony at his deposition, no MBE that was hired for Project No. 3 performed the same work that would have been performed by Mintex “had the parties had a binding agreement,” rendering these requests irrelevant. See Doc. 48 at 5. As previously explained, the 2015 amendments to Rule 26 deleted the phrase “reasonably calculated to lead to the discovery of admissible evidence” because the phrase has been used to incorrectly define the scope of discovery. See Lopez, 327 F.R.D. at 573. Further, Defendants' arguments based on the ultimate merits of the case are summary-judgment arguments, and not a proper basis to withhold documents in response to Rule 26 discovery requests. In their response brief, Defendants do not press any of their overbreadth or undue burden objections, except as to RFP No 16. The Court addressed each request in turn:
RFP No. 6: Please produce all communications between You and NTTA, internal communications, and communications with third parties discussing which business or entity would be the MBE for Project No. 3.
Response: Defendants object to this request because it is not relevant to Plaintiff's claims, is overly broad in time and scope, and “internal communications” could include privileged communications. Subject to and without waiving these objections, Defendants have previously produced the documents they exchanged with NTTA concerning who would be the MBE for Project No. 3, and that this entity would not be Mintex.
*7 Defendants' objection based on relevance is OVERRULED. Given Mintex's contention that NTTA lists it as the participating DBE on Project No. 3, and that Defendants prevented it from participating in Project No. 3 without explanation and in breach of numerous representations that it was the participating DBE, internal and external communications about who was actually permitted to perform such work is relevant. Insofar as Defendants assert any such responsive documents are privileged, a privilege log or equivalent document complying with Federal Rule of Civil Procedure 26(b)(5)(A)'s requirements must be produced for any documents, communications, or other materials withheld from production on the grounds of attorney-client privilege, work product, or other privilege, immunity, or protection. See FED. R. CIV. P. 26(b)(5); see also In re Santa Fe Int'l Corp., 272 F.3d 705, 710 (5th Cir. 2001) (holding that the “party asserting a privilege exemption from discovery bears the burden of demonstrating its applicability”).
RFP No. 8: Please produce all payment records and ledgers (broken down by subcontractor) indicating how much You have paid any and all subcontractors for Project No. 3 from 2019 to present.
Response: Defendants object to this request because it is not relevant to Plaintiff's lawsuit nor reasonably calculated to lead to the discovery of admissible evidence.
Defendants' objection based on relevance is OVERRULED. As Mintex argues in its Motion to Compel, this request is relevant because Mintex maintains that it is the rightful and contractual DBE for Project No. 3. It alleges that the 4906 was breached and/or it was defrauded out of performing under the 4906 by Defendants. Whether amounts were paid to the DBE (or entity which performed the work in lieu of Mintex) is relevant to the allegations in the First Amended Complaint and to Mintex's damages model. Further, insofar as Defendants raise confidentiality concerns, the parties have a Protective Order in place that provides a mechanism to allow parties to mark certain documents as “confidential” should the need arise. See Doc. 40-10.
RFP No. 9: Please produce all contracts (and drafts thereof) between You and with the entities or business which have acted as the MBE for Project No. 3 from inception to present.
Response: Defendants object to this request because it is not relevant to Plaintiff's lawsuit nor reasonably calculated to lead to the discovery of admissible evidence.
Defendants' objection based on relevance is OVERRULED for the same reasons stated by the Court with respect to RFP No. 8. In addition, given that the fully executed form 4906 produced by NTTA and the form 4906 produced by Defendants do not match, compare Doc. 40-12 with Doc. 40-13, Defendants are ORDERED to confirm that they have in fact produced the 4906 ultimately submitted to NTTA as well as any communications, internally or with NTTA, explaining this discrepancy.
RFP No. 10: Please produce all communications between You and the entities or business which have acted as the MBE for Project No. 3 from inception to present.
Response: Defendants object to this request because it is not relevant to Plaintiff's lawsuit nor reasonably calculated to lead to the discovery of admissible evidence.
RFP No. 12: Please produce all internal communications discussing the entities or business which have acted as the MBE for Project No. 3 from inception to present.
Response: Defendants object to this request because it is overly broad in time and scope, is repetitive of prior requests and is not relevant to Plaintiff's claims.
RFP No. 14: Please produce all internal communications discussing Project No. 3 in any way.
Response: Defendants object to this request because it is overly broad in time and scope by requesting “all internal communications.” Such a request may also encompass privileged communications. Subject to and without waiving these objections, Defendants will produce any additional responsive, non-privileged documents, if any.
*8 RFP No. 20: Please produce any and all communications You have with subcontractors for, or otherwise related to, Project No. 3.
Response: Defendants object to this request because it is not relevant nor reasonably calculated to lead to the discovery of admissible evidence.
Defendants' objections based on relevance are OVERRULED. As with Requests Nos. 8 and 9, these Requests seek to discover information (namely communications) between the Defendants (internally and externally) and those who acted as the DBE(s)–in place of Mintex. The communications sought and whether or not these communications were about or referenced Plaintiff, in any way, are relevant to the allegations in the First Amended Complaint.
RFP No. 16: Please produce all internal communications regarding NTTA.
Response: Defendants object to the request because it is overly broad in time and scope.
Mintex states in its Motion to Compel that it “agreed to clarify this Request and limited it to January 1, 2017, to present day.” Doc. 40 at 18. Contending that the time frame was still too broad, Defendants stated in their response that the relevant time frame should be limited to mid-2018 until early 2021, when the parties “were both aware that Plaintiff would not perform as a MBE on Project No. 3.” Doc. 48 at 8. Defendants' objection is SUSTAINED in part. The Court finds that the relevant time frame is 2018 to present.
Finally, Mintex argues that Defendants have waived any objections not initially raised, including new objections of confidentiality and proprietary information, and an objection that Mintex's discovery “constitutes a fishing expedition.” Doc. 54 at 6. The Court agrees. Because Defendants failed to raise these objections initially in their response to the Request for Production, the objections are waived. See Samsung, 321 F.R.D. at 283-84.
For these reasons, and to the extent stated, Mintex's motion to compel responses to its request for production is GRANTED.
Mintex seeks to “depose whoever the gatekeeper is of Defendants' document production process in order to understand how a non-party [NTTA] has more responsive information than Defendants claim to.” Doc. 40 at 4. Mintex maintains that “[e]ither Defendants' counsel are intentionally misleading Plaintiff's counsel regarding what exists in the universe of documents in this case, or the person internally managing Defendants' document production is failing and refusing to turn over responsive documents to its counsel.” Doc. 40 at 4. Defendants counter that Mintex had “ample opportunity to depose Defendants about the discovery process” and “[n]o further deposition testimony is warranted.” Doc. 48 at 8-9. In its reply brief, Mintex states that the “person most knowledgeable regarding Defendants' discovery process ... appears to be Navient's General Counsel, Mr. Mark Raschess.” Doc. 54 at 2.
In December 2023, Mintex deposed Defendants' corporate representative, Eric Hunn, and had opportunities to ask questions about Defendants' discovery process. In addition, Mintex appears to be relying on non-party NTTA's significantly larger production of documents to show that Defendants are abusing the discovery process. See Doc. 40 at 3; Doc. 54 at 3. In response, Defendants assert that “this argument is a red herring, as it does not account for the massive amounts of duplicate emails and documents received from NTTA. Further, in its production, NTTA produced thousands of documents unrelated to Plaintiff or the dispute at issue in this lawsuit.” Doc. 48 at 3. Defendants further contend that their “productions do not contain many, if any, duplicate emails or documents. Plaintiff cannot point to NTTA's larger production as evidence that Defendants must be ‘hiding’ documents.” Doc. 48 at 3. The Court agrees. That a non-party such as NTTA produces more documents than a party to the lawsuit is not evidence of stonewalling or discovery abuse by Defendants.
*9 On the record presented, where Mintex had already had adequate opportunity to depose Mr. Hunn regarding the discovery process, allowing the deposition of Defendants' general counsel would be “harassing” and potentially an “invasion of the attorney-client privilege and the work product doctrine.” See Doc. 48 at 8-9. Accordingly, Mintex's motion to compel the deposition of the person most knowledgeable about Defendants' discovery process is DENIED.
C. Defendants' Motion for Protections and to Quash Subpoenas, Doc. 46
In December 2023, Mintex served deposition notices and subpoenas upon two of Defendants' out-of-state employees, Brian Dunn and Eric Hunn, seeking their remote depositions via Zoom. See Subpoena(s) to Testify at a Deposition in a Civil Action (the “Subpoenas”), Doc. 46-1 at 4, 11. Defendants' counsel agreed to accept service of the Subpoenas in January 2024. Doc. 46 at 2.
Defendants initially moved for a protective order and to quash the Subpoenas under Federal Rule of Civil Procedure 45, arguing that the Subpoenas exceed the scope of the 100-mile subpoena power afforded by FED. R. CIV. P. 45(c)(1)(A). In their reply brief, Defendants withdraw their motion to quash. See Doc. 57 at 10. Remaining is Defendants' motion for protective order, asking the Court to protect them from “additional, unnecessary oral discovery.” Doc. 46 at 1.
Under Rule 26(c)(1), “[a] party or any person from whom discovery is sought may move for a protective order in the court where the action is pending.” FED. R. CIV. P. 26(c)(1). If the court deems the motion meritorious, it may impose a protective order that, inter alia, “forbid[s] certain disclosures, specif[ies] the terms for disclosure, forbid[s] inquiry into certain matters, or limit[s] the scope of disclosure to certain matters.” Alvarado v. Air Sys. Components LP, No. 3:19-CV-2057-N, 2022 WL 800731, at *1 (N.D. Tex. Mar. 15, 2022) (citing FED. R. CIV. P. 26(c)(1)(A)). The court has broad discretion to grant a motion for protective order, on a showing of “good cause,” “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” FED. R. CIV. P. 26(c). “The court must ‘balance the competing interests of allowing discovery and protecting the parties and deponents from undue burdens.’ ” Samurai Glob., LLC v. Landmark Am. Ins. Co., No. 3:20-CV-3718-D, 2023 WL 8627527, at *1 (N.D. Tex. Dec. 13, 2023) (quoting Williams ex rel. Williams v. Greenlee, 210 F.R.D. 577, 579 (N.D. Tex. 2002) (Kaplan, J.) (citation omitted)). The party seeking the protective order bears the burden of making a specific objection and showing that the discovery fails the Rule 26(b)(1) proportionality calculation. Id. (citation omitted).
In support of their motion for a protective order, Defendants argue that the noticed depositions of Messrs. Hunn and Dunn, both current employees, are duplicative of the Mr. Hunn's December 2023 deposition in his role as Defendants' corporate representative and should not be permitted. Doc. 46 at 6-8. They contend that “Plaintiff's Subpoenas would therefore merely prolong discovery, be unnecessarily cumulative, increase expense, harass the witnesses, and still establish what Plaintiff tries its best to hide—that there was no contractual agreement between the parties and that Plaintiff consequently incurred no damages.” Doc. 46 at 8. Defendants also maintain that the parties agreed to limit oral and written discovery. Doc. 46 at 8.
*10 Mintex seeks these individual depositions from fact witnesses who may have personal knowledge relevant to the issues in this case, including, among other topics, the 4906, discussions with the NTTA, and interactions and communications with Mintex and others concerning Project No. 3. Doc. 55 at 3-6. Mr. Hunn was the account executive of record for Project No. 3 and Mr. Dunn its program manager. See Doc. 55-3. The First Amended Complaint alleges that these individuals “represented, at all times, that Mintex was the MBE for Project No. 3.” Doc. 11 at 5. In addition, Mintex asserts that “Mr. Dunn corresponded directly with NTTA regarding the 4906 and the 4906b and is in the best position to know why Defendants did not resolve this issue with Mintex despite being instructed to by NTTA.” Doc. 55 at 2. “Mr. Hunn eventually took over Project No. 3 from Mr. Dunn and as such has unique knowledge of how the Project was run.” Doc. 55 at 2. Defendants' contention that the individuals' testimony will be duplicative of the testimony of Mr. Dunn in his capacity as the corporate representative—who spoke on behalf of Defendants as to their policies, practices, and procedures as an entity—is speculative at this juncture. And, although Mintex previously deposed Mr. Hunn in his capacity as a corporate representative and then passed the witness, Mintex passed the witness in his capacity as a corporate representative and not as a fact witness. See Doc. 55 at 11.
With regard to Defendants' contention that the parties agreed to limit discovery of fact witnesses, see Doc. 46 at 8, the Court has reviewed the First Amended Rule 26(f) Joint Status Report, Doc. 39, and agrees with Mintex that the parties agreed to limit depositions of corporate representatives only. See Doc. 39 at 6.
Because Defendants have not demonstrated that Mintex's deposition notices to Messrs. Hunn and Dunn as fact witnesses are inappropriate, oppressive, unduly burdensome, or disproportionate to the needs of the case, Defendants' motion for a protective order is DENIED. Mintex may proceed with the depositions via Zoom and question Messrs. Hunn and Dunn about their personal knowledge of the specific matters listed in Mintex's response to Defendants' motion. See Doc. 55 at 4, ¶ 8 (enumerating topics for Mr. Hunn's deposition); Doc. 55 at 5, ¶ 9 (enumerating topics for Mr. Dunn's deposition). Obviously, nothing in this ruling precludes Defendants from challenging the admission of any deposition testimony obtained by Mintex on relevancy grounds.
D. Defendants' Motion to Exclude, Doc. 58
Defendants seek to exclude the errata sheet of Mintex's corporate representative, Jessie L. Thomas, asserting that Mr. Thomas submitted an errata sheet after his November 2023 deposition with “sixty-seven (67) substantive changes to prior, sworn testimony.” Doc. 58 at 1. Defendants contend that “[i]f these heavy-handed errata sheet changes are not excluded, the deposition testimony risks being nonsensical. This Court should not allow for such egregious, substantive changes amounting to little more than lawyer testimony, just as many other courts have refused to do.” Doc. 58 at 2.
Mintex has filed a Notice of Withdrawal of Errata Sheet Corrections of Jessie L. Thomas (“Notice”), Doc. 64, “withdraw[ing] a total of 57 changes to the Errata Sheet initially submitted.” Doc. 64 at 1. Attached to the Notice is an amended errata sheet and an updated Verification from Mr. Thomas. See Doc. 64-1 and Doc. 64-2.
Based on these developments and having compared the original errata sheet (Doc. 58-2) to the amended errata sheet (Doc. 64-1), Defendants' Motion to Exclude is DENIED AS MOOT.
IV. AWARD OF EXPENSES
After considering all of the circumstances here and the findings and conclusions above, the Court determines that, under FED. R. CIV. P. 37(a)(5)(C), Mintex shall bear its own expenses, including attorney's fees, in connection with its Motions to Compel.
V. CONCLUSION
For the reasons and to the extent explained above,
(1) Defendants' Motion to Compel, Doc. 38, is DENIED.
(2) Plaintiff's Motion to Compel Discovery, Doc. 40, is GRANTED as detailed herein. Defendants are ORDERED to, by March 11, 2024, (1) in connection with their Final Production, supra, produce not just the screen shots, but available original copies of the responsive emails, as well as any missing attachments, responses, and replies associated with such emails (2) serve on Mintex complete written responses to Document Requests Nos. 6, 8, 9, 10, 12, 14, 16, and 20, and produce all unproduced, non-privileged documents and electronically stored information responsive to these Document Requests (as modified herein) that are in Defendants' care, custody, or control, in compliance with Rule 34(b)'s requirements; (3) clearly reference bates numbers corresponding to their production of documents previously produced in response to Mintex's Request for Production, and corresponding to their production of documents pursuant to this Order, in a manner that will permit Mintex to adequately reference the documents and determine which documents have been produced in connection with which requests, and which documents, if any, are being withheld; and (4) if Defendants have no additional information to produce in response to Mintex's Requests for Production, they are to so state and provide as much specificity as possible regarding why they have no additional information to produce. The response must be signed by counsel. Counsel's signature will constitute his or her certification under Rule 26(g) that the response is complete and correct. See FED. R. CIV. P. 26(g)(1).
*11 (3) Plaintiff's Motion to Compel Deposition, Doc. 40, is DENIED.
(4) Defendants' Motion for Protections, Doc. 46, is DENIED.
(5) Defendants' Motion to Quash, Doc. 46, is DENIED AS MOOT.
(6) Defendants' Motion to Exclude, Doc. 58, is DENIED AS MOOT.
SO ORDERED on February 26, 2024.
Footnotes
See Order Referring Motions, Doc. 41; Order Referring Motion, Doc. 47; and Order Referring Motion, Doc. 59.